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The ruling in Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, LP expands the rights of citizens groups to bring suits for penalties and injunctive relief under the Clean Water Act even when a state EPA is actively involved in addressing the issue.  Furthermore, the court ruling allows claims to be brought even when the original spill ceased and all that remains is ongoing migration from a historical spill.

Factual Background

Back in 2014, a leak occurred in the Plantation Pipe Line which runs from Louisiana to Washington, D.C.  The leak resulted in the discharge of gasoline and petroleum below ground.  While the leak was repaired quickly, cleanup has been ongoing for a number of years.  The cleanup has been supervised by the South Carolina Department of Health and Environmental Control (SCDHEC).  In 2016, environmental groups brought suit claiming the cleanup has been inadequate to prevent migration of pollution into nearby waterways.

Issues Presented

The suit raised a number of important issues:

  • Typically, where state or federal regulators have taken affirmative action to address a violation, such regulatory action bars citizens from bringing suit. Why not here?
  • When a spill has stopped do citizen groups still have authority to assert a claim?
  • Does subsurface pollution that migrates to waterways fall within the scope of the Clean Water Act as a prohibited discharge
    • The Clean Water Act regulates “point source” discharges which are “any discernible, confined and discrete conveyance,” including pipes, ditches, channels and tunnels. 33 U.S.C. § 1362(14)

Fourth Circuit Rules the Environmental Groups Could Bring Suit

The Court did not directly address the extent of state involvement in the cleanup.  However, the cleanup was only being performed in accordance with “guidance” from the SCDHEC, not under a formal judicial consent order which would bar a subsequent citizen’s suit.  While the Company was working with state regulators to cleanup the spill, the State never took formal enforcement to cutoff citizen suits.

The Court ruled the spill was not a “wholly past violation.”  While the pipeline was fixed, the spill left contaminants in the ground that were still migrating to nearby waterways.  The Court found that the pipeline was a point source and even though the pipeline was repaired, ongoing violations were occurring due to migration of contamination to waterways from the original spill. The Court held:

“The CWA’s language does not require that the point source continue to release a pollutant for a violation to be ongoing. The CWA requires only that there be an ongoing ‘addition… to navigable waters,’ regardless whether a defendant’s conduct causing the violation is ongoing.”

The Court rejected other court rulings that held such ongoing migration of pollution did constitute wholly past violations.  It distinguished this case from a prior ruling that held decomposition of lead shot was not an ongoing violations.  Conn. Coastal Fisherman’s Ass’n v. Remington Arms Co., 989 F. 2d 1305, 1312-13 (2d Cir. 1993).  With regard to the case of lead shot, in contrast to the Kinder Morgan case, the pollutants had already been deposited into a waterway.  Here, pollution was still entering nearby waterways from the historical spill.

Finally, the Court held that violations of the Clean Water Act are not limited to “direct discharges” to a waterway.  The Clean Water Act also covers “indirect discharges,” in this case pollution migrating through groundwater and entering nearby waterways.  However, the Court cautioned, the connection between a point source of pollution and a waterway must be clear (i.e. a “direct hydrological connection”).

As part of the 2008-2009 State budget, Ohio set aside $19.8 million to be used for diesel grants to achieve reductions in air pollution from the transportation sector.  The set aside represents the largest dedicated pool of funds to diesel emission reductions in the Midwest. The grants could be used to pay for pollution control retrofits and anti-idling technology for diesel engines in public and private fleets across the state.

The Ohio Department of Development (ODOD) is charged with implementing the program.  In February 2008 it solicited its first applications.  However, there was a lack of guidance to applicants in the rush to get the program up and running.  As a result, those who still submitted applications did so without knowing whether their application would be deemed sufficient.

Awards were scheduled to be made in early Spring with a second round of applications to follow in late Spring.  Unfortunately, the Federal Highway Administration has raised concerns with the details of the Ohio program that has stopped the program in its tracks.  No announcement has been made regarding the first round of applications and now the second grant round in fiscal year 2008 has been shelved according to ODOD’s website. 

Last year I wrote an op-ed piece in Crain’s Cleveland Business that made the strong case for reducing emissions from the transportation sector. 

Unfortunately, I couldn’t include a graphic with my article because I think this chart prepared by Ohio EPA sums it all up (click on the chart to see a larger version).  The majority of the pollution causing our ozone problems in Northeast Ohio are from the transportation sector, not area businesses.  With Ohio’s economy hurting, achieving greater reductions from the transportation community is essential to reducing costs for Ohio businesses and allowing them to compete.  Hopefully, the impediments that have stalled this program can quickly be removed as it has become apparent Ohio will likely have one year to spend the $19.8 million.